Find out how judges in Texas determine whether alimony is appropriate in divorce cases.
Alimony is a payment that one spouse makes to the other during and/or after the divorce process. In Texas, the court calls these payments "spousal maintenance" or "maintenance."
Qualifying for Spousal Maintenance in Texas
Either spouse can request maintenance during the divorce process in Texas. However, the court can only award support if the requesting spouse doesn't have enough property at the time of the divorce to provide for basic needs, and at least one of the following circumstances exist:
- the supporting spouse was convicted of an act of family violence against the other spouse or the couple's children within two years of the divorce filing, or while the divorce is pending
- the spouse seeking maintenance is unable to earn enough income to be self-supporting due to an incapacitating physical or mental disability
- the couple has been married for at least ten years, and the dependent spouse lacks the ability to earn income to meet basic needs, or
- the supported spouse is a custodial parent of a child who requires substantial care or personal supervision due to a mental or physical disability which prevents the parent from working and earning an income. (Tex. Fam. Code Ann. § 8.051.)
Factors for Determining Maintenance Awards in Texas
Texas law begins every maintenance case with the presumption that spousal maintenance is not appropriate. However, if requesting spouses can demonstrate they have made a good faith effort to earn an income or acquire the education or training necessary to become financially independent during the separation and divorce process (and still need support), the court will move forward with a maintenance evaluation. (Tex. Fam. Code Ann. § 8.053.)
The court will evaluate the following factors to determine the nature, amount, duration, and payment method of support:
- each spouse's ability to provide for that spouse's reasonable needs
- the education and employment skills of both spouses, the time necessary to acquire education or training to enable the supported spouse to earn enough income to become financially independent
- the duration of the marriage
- the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance
- if child support is a factor in the case, each spouse's ability to meet needs while paying child support
- whether either spouse wasted, concealed, destroyed, or otherwise disposed of any community property
- whether either spouse contributed to the other's education, training, or increased earning power during the marriage
- the property both spouses brought to the marriage
- any contributions of a spouse as a homemaker
- marital misconduct, including adultery and cruel treatment, by either spouse during the marriage, and
- any history or pattern of family violence. (Tex. Fam. Code Ann. § 8.052)
Duration of Maintenance Orders
Texas law requires judges to follow strict guidelines when deciding the duration of maintenance awards. If the judge orders a spouse to pay support because of a physical or mental disability, duties as a custodial parent of an infant or young child of the marriage, or another compelling reason, support can continue for as long as the conditions exist. The court may order a periodic review of the support order in the future. (Tex. Fam. Code Ann. § 8.054 (2).)
For all other maintenance orders, support is limited by Texas law to:
- five years, if the spouses were married less than 10 years and the supporting spouse was convicted of family violence
- five years, if the spouses were married more than 10 years but less than 20 years
- seven years, if the spouses were married for at least 20 years but not more than 30 years, and
- ten years, if the spouses were married for at least 30 or more years. (Tex. Fam. Code Ann. §8.054 (1))
With the exception of a physical or mental disability, custodial parent, or other compelling circumstance, Texas law requires judges to order support for the shortest duration necessary for the supported spouse to become self-supporting. (Tex. Fam. Code Ann. § 8.054 (2).)
Maintenance orders will end before the termination dates if:
- either party dies
- the supported spouse remarries
- the supported spouse cohabitates with a third-party while in a dating or romantic relationship, or
- upon a review or future order of the court. (Tex. Fam. Code Ann. § 8.056.)
Amount of Maintenance in Texas
Texas is unique in that, unlike many other states, the law limits the amount of support a court can order. Maintenance awards may not be more than $5000 per month or more than 20% of the spouse's average monthly gross income (whichever is less). (Tex. Fam. Code Ann. § 8.055.)
It's common for a judge to order periodic payments (usually monthly) of spousal maintenance. The court may issue an income withholding order, which directs the paying spouse's employer to deduct maintenance payments from the paycheck and forward it to the proper court agency. (Tex. Fam. Code Ann. § 8.101.)
Changing a Maintenance Award
The court can modify (change) spousal maintenance orders if there is has been a material and substantial change of circumstances since the first order. Until the court formally changes the award, the paying spouse must continue to follow the requirements of the current court order. (Tex. Fam. Code Ann. § 8.057)
It's important to understand that until the judge hears your request for an alimony modification, you must continue to follow the court order. Failure to comply with a court order is a serious offense and may result in severe penalties, such as attorney's fees, bank liens, or time in jail. Supported spouses who aren't receiving court-ordered payments can file a formal request with the court for help enforcing the order.
Spousal Maintenance and Taxes in Texas
The 2017 Tax Cuts and Jobs Act significantly impacts spousal maintenance. Before January 1, 2019, paying spouses could deduct maintenance payments from their income, and supported spouses reported and paid taxes on the income.
However, for all alimony agreements and/or court orders finalized on or after January 1, 2019, maintenance payments are no longer considered income for the recipient or a tax deduction for the paying spouse.
If you're unsure how the new tax law impacts your bottom line, speak with an experienced tax and divorce attorney near you.
